A Post-licensing World for Surveying?

One geospatial professional’s suggestions on increasing the professional aspect and relevancy of the surveying profession.

Editor’s note: The subject of licensure for surveyors, photogrammetrists, and other geospatial professionals has heated up of late. This has been as a result of efforts in a number of states, including Tennessee and Washington, to redefine the definition of surveying with regards to licensure to (as many view it) expand into other fields. Others view this as simply righting some oversights. There is, of course, controversy when a potential legal or regulatory action may have broader implications for related and unrelated fields of endeavor.

While xyHt is not taking sides on this issue, nor necessarily agrees or disagrees with all or part of any of the following article, our editorial team feels that dialogue is extremely important. Al Butler offers a very thought-proving and well-researched examination of many aspects of this subject. Please join in the conversation.

Although I use the phrase “post-licensing world” to describe the future, I strongly support the continuing presence of state-licensed surveyors in the practice of determining real property boundaries and rights. The only way I believe we can preserve this role for the surveyor is by increasing the professionalization of the practice and the practitioner while simultaneously moving much of the current technical scope of the regulated profession out of the reach of state licensure laws. With so much of the technology of high precision positioning coming within the reach of so many, even down to the consumer level in some cases, it may be that the professional evaluation of land records and boundary evidence stands as the only truly indisputable element of existing licensure. And now more than ever, licensure alone should not define the surveying profession; the behavior of surveyors should.

But what of some possible scenarios where the regulatory and technological climates are changing rapidly? Increasingly, the notion of reducing the levels of licensure has been entertained by regulatory bodies and elected officials [Ed. The U.S. Congressional Committee on Small Business sent a letter[1] to the full house on August 20th 2014 urging evaluation of the impacts of licensure of all kinds on small business; these conversations are happening – all the more reason to have dialogue]

Consider the following scenario: We have about five years to put the post-licensure framework for the surveying profession in place. The 2022 National Spatial Reference System, which is currently being created, will provide 10-cm accuracy for cheap, handheld devices and 1-cm accuracy for 15-minute observations. This system is so sensitive that adjustment for continental drift must be included, as the North American plate is moving to the southwest fast enough to be noticed in observations at a given location just a year later. The system will use the instrument and dynamic reference framework, not fixed passive monuments, as the basis for location. Portions of the new datum will be operational well before 2022. How surveyors work will be radically changed, and this will be the way everyone can collect spatial data.

Time to prepare the new regulatory framework for the surveying profession as the status quo runs out when you see an advertisement in trade magazines for a survey pole that holds a smart phone, which may be much sooner than five years. Consider, for example, this quote from a recent advertisement: “The ultra-rugged [GNSS antenna] is a valuable solution for contractors who want to conduct their own high accuracy site measurement tasks without hiring a contract surveyor.” It also notes the user-friendly “smart phone configuration.” As one land surveyor recently wrote, “there will be faster and easier ways to do it and the land surveyor’s services will no longer be needed—after all—there will be an app for that.”[2]

When everyone can determine location with high accuracy, what do surveyors need to do? [As Al points out, there is a general misunderstanding of surveying licensure; it is not a “license to measure.” Instead, it is the professional evaluation of all evidence related to boundary determination, of which measurement is only one, often minor, element. There are those who feel that this distinction and the nuances of respective states’ land surveying definitions are misunderstood even by some surveyors.] Make the profession more professional by emphasizing the art of surveying rather than the technology of measurement and position. This article will describe how to do that.

Why the Future Has To Be Different

Lest you think the path to preservation of the surveying profession is to convince your state legislature to make photogrammetry and GIS part of the licensed practice of surveying, you need to be aware that the entire regulatory climate is changing rapidly. For example, there is, as some view it, a growing pressure to preempt the states in regulating spatial data of all types.

Spatial data, as exemplified by Google Earth, in-car GPS-based navigation systems, and MapQuest, is clearly part of interstate commerce. Federal preemption under the Interstate Commerce Clause of the U.S. Constitution takes most spatial data out of the state’s regulatory hands. The growing body of federal law and regulation related to digital data and how the Internet works, plus the decisions of multiple federal courts, mean that spatial data has been preempted from state regulation through the field proof.[3] Real property boundary surveying would remain under state regulation due to its connection with state real property laws, but other “technology-only” products not tied to state laws are goods in interstate commerce.

Consider, for example, a BMW made in South Carolina that has an in-car navigation system. Does South Carolina law require the map used in that system to have been prepared by a state-licensed surveyor? If it did, how would the portions of that map describing other states be created by a surveyor licensed only in South Carolina? Would it then be illegal for the buyer of that vehicle to drive it into North Carolina, where the surveyor who created the map is not licensed? What about the role of the navigation software, which interprets the spatial data and makes decisions? Would a licensed surveyor have been required to oversee the preparation and testing of that software? “No” is the answer to all these questions. The federal government regulates the manufacture of motor vehicles, including in-car navigation systems, through explicit and field proof preemption.

There is also the June 14, 2007 decision by Judge T.S. Elliot, III, in the U.S. District Court for the Eastern District of Virginia[4] in which the court ruled that there are many professions that conduct spatial data collection and perform mapping: “It is also worth noting that the record unambiguously reflects that the provision of ‘mapping’ services in the modern marketplace includes a much broader scope of work than the traditional mapping work of land surveyors.”[5] The particular evidence cited by the court in reaching this conclusion says, “The vast majority of personnel in the geospatial community are not licensed surveyors.”[6]

There is also the declaration by the National Council of Examiners for Engineering and Surveying (NCEES) of a distinction between surveying and other fields in the collection, analysis, and publication of spatial data. The Model Rules adopted by that organization in 2006 lists a number of spatial data activities that fall outside the regulated field of surveying. Anyone can readily list a dozen professions that produce spatial data and mapping products that are clearly not associated with the licensed practice of surveying, such as law enforcement officers documenting a crime scene. You should continue to add products and services to the scope of your practice, just don’t try to convince me and other people that it is all part of the regulated practice of surveying just because you are doing it.

History should make it obvious that any attempt to regulate the entire spatial data field as the licensed practice of surveying has no possibility of success. Yes, a few states have and may yet pass licensure laws putting photogrammetrists and GIS practitioners within the scope of the surveying profession, but any attempt to actually enforce such a law against someone with a little money (Google, Lockheed Martin, and Apple) or political power (medical, mortgage, and military lobbies) will quickly show that this path is not the way to go. No, the surveying profession needs a better plan.

A Better Way

Increasing the professional aspect of surveying practice requires emphasizing the legal elements of the field: research, discovery, and evaluation of evidence related to boundaries and rights. Technology has replaced the mechanical skills required to find where things are below, on, or above the Earth. Yes, there are still technically difficult things to do, but the level of professionalism—the degree of difficulty—expressed in the practice of surveying that exists in no other field is the discovery and evaluation of evidence. To be the profession surveying ought to be, it needs to be seen as a branch of law rather than of engineering. Surveying is the practice of law in the area of property rights. The only difference from regular legal work is that the surveyor also gets to be the private detective. Doing a retracement survey is the hard thing to do, not being the original sub-divider.

Increasing the relevance of the surveying profession also requires a stronger alliance with the planning field, as it is that field—not engineering or architecture—that also provides legal input into determining real property rights. The practice of planning has its foundation in the field of law and has a strong spatial element. In fact, some writers have traced the history of planning to the practice of surveying by such notable persons as Thomas Jefferson and Pierre L’Enfant. Many states recognize the role of surveyors in planning new development by allowing them to prepare and submit commercial and residential development proposals directly to planning officials without requiring the involvement of licensed landscape architects or engineers.

Outside the USA, the surveying and planning professions are already more closely linked. For example, Kingston University of London continues to keep the professions together in its School of Surveying and Planning[7] and the University of Aalborg in Denmark groups planning and surveying with land management, the last term being used as the overall name for the joint profession[8]. Many countries use the title of “planning surveyor” to acknowledge the special skills of the person who can operate in both fields.[9]

Surveyors themselves are recognizing the need to redefine the profession in a way that decreases the technical aspects of the field and emphasizes professional judgment. Recently, Jeffery Lucas, who is licensed as both a surveyor and an attorney, pointed out that many people and companies gather GPS data and “map the world” on a routine basis. He believes “There are all types of activities that could be labeled surveying but they are not exclusive to the licensed land surveyor. … The only aspect of surveying that requires regulation and licensure is when surveyors are dealing with people’s property rights, and that happens when a survey of property is performed.”[10] He believes we need a change “in the way land surveyors see themselves.”[11] Another author, Chris Gibson, a Trimble vice president, linked the surveying and mapping field to the planning and land management fields by using the project concept as the point of intersection, which is consistent with my proposal.[12]

My premise is that the most successful approach will be to more closely align the surveying profession with the practices of the legal and planning professions. They are historically linked and will continue to be tightly integrated in the foreseeable future. Emphasizing the judgment expressed in the rules of boundary evidence, the specialized knowledge of property rights required for surveyors, and the role of surveying in the practice of land development releases the surveying profession from having to chase each new technological development and try to convince everyone else that it is part of surveying, so no one else should be allowed to use it.

This is truly one time when less is more. Focus on the traditional judgment basis of the surveying field and ignore the technology of the day. Stick to basic principles. Eliminate the pincushion corner in retracement surveys and collectively deal with the gaps and overlaps of adjacent surveys. These problems serve only to diminish the surveying profession in the eyes of your fellow geospatial practitioners and the public. Find a way for surveyors to deal with these problems directly rather than leave it to us cadastral mappers to fix.

When everyone can get a position accurate to 1 cm using their cellphone, the surveyor will still be the person who knows where to hold the phone. Stop thinking that a state license is going to save the profession. History has shown there is a chance it can be gone in an instant. Depend instead on yourself and how well you do the real thinking person’s work of surveying. Add value to the land development process. Work more closely with planners and attorneys. Those of us who depend on the products and services you deliver know the inherent value of the work. All you need to do is act like you believe it, too.

[2] Lucas, Jeffery N., PLS, Esq., “A Statute of Limitations on Boundaries,” in Point of Beginning, July 2014, pp. 26-28.

[3] ‘Field proof’ means that the US government has provided so many regulations related to electronic data that they have effectively preempted the states in this field, even though there is no explicit declaration by the Congress that they intended to do so.